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A non-partisan public service

4.1 In 2008, the Public Service Commission (PSC) commemorated its 100th anniversary of service, on behalf of Parliament, to ensure that Canada has a professional and non-partisan public service.

4.2 Non-partisanship is a core value by which public servants are appointed without political influence and are seen to carry out their duties in a politically impartial manner. Non-partisanship has been a tradition since the adoption of the merit principle in 1908. While the Commission has undergone many changes since then, its mandate to protect merit and non-partisanship in the federal public service has been constant.

4.3 The federal public service is recognized by other jurisdictions, internationally and domestically, for its reputation of being politically impartial. A non-partisan public service makes responsible democratic government work by:

Providing continuity and a stable legal and constitutional transition when democratic processes result in new administrations;

Ensuring that ministers are given objective advice to use in establishing policies and programs to meet the needs of Canadians; and

Providing information that ministers need to fulfill their accountability to Parliament and to Canadians.

4.4 When the merit principle was introduced 100 years ago, efforts to achieve a professional and non-partisan public service centered on ensuring that appointments to the public service were free of political influence and restricting the political activities of public servants following appointments, except for voting. Over time, there have been gradual changes affecting the landscape for public servants wishing to participate in political activities. The 1967 Public Service Employment Act (PSEA) continued the ban on most political activities, yet stated that public servants did not contravene the Act by donating money to a political party or by attending political meetings. The Act also allowed public servants to stand for election with the permission of the PSC. Deputy heads remained barred from any activity other than voting.

4.5 The adoption of the Canadian Charter of Rights and Freedoms in 1982 and, in particular, the Supreme Court decision Osborne v.Canada (1991), significantly changed the landscape for the political activities of public servants. In Osborne, a majority of the Court ruled that public servants had a right to engage in political activities while maintaining the principle of an impartial public service.

4.6 The result was a reaffirmation in the current PSEA that non-partisanship is a core value of the public service and that appointments must be free from political influence. In addition, Part 7 of the Act explicitly permits public servants to engage in political activities as long as the activities do not impair, or are not perceived as impairing, their abilities to perform their duties in a politically impartial manner. It also establishes an enhanced regime for the PSC to oversee the political activities of public servants

Non-partisanship in staffing

4.7 The PSC continues to ensure that appointments to and promotions within the public service are made free from political influence. Over the course of 2008-2009, no cases of political influence in staffing were brought to the attention of the PSC.

Part 7 of the Public Service Employment Act

4.8 Part 7 of the PSEA outlines the regime governing political activities for public servants. It balances the right of public servants to engage in political activities with the principle of political impartiality of the public service. Public servants may engage in any political activity (as defined by the Act) as long as it does not impair, or is not perceived as impairing, their ability to perform their duties in a politically impartial manner.

4.9 Part 7 applies to employees in federal organizations that are subject to the PSEA and for which the PSC has the exclusive authority to make appointments. It also applies to deputy heads and chief executive officers of other public service organizations subject to the PSEA, and to certain separate agencies whose enabling legislation provides that the political activities provisions of the PSEA apply to their employees (i.e. the Canada Revenue Agency, the Parks Canada Agency, the Canadian Institutes of Health Research, the Financial Transactions and Reports Analysis Centre of Canada, the National Film Board of Canada and the Public Service Staffing Tribunal).

4.10 Political activity, as defined in section 111 of the PSEA, means:

Carrying on any activity in support of, within or in opposition to a political party;

Carrying on any activity in support of or in opposition to a candidate before or during the election period; or

Seeking nomination as or being a candidate in an election before or during the election period.

4.11 The political activities of deputy heads are limited to voting. However, deputy heads play an important leadership role in ensuring that the public service is professional and non-partisan.

4.12 Employees seeking nomination as, or being, candidates in an election must first seek permission from the PSC.

4.13 Employees carrying out activities not related to candidacy are responsible for examining their own specific circumstances in order to determine whether or not they can engage in a given activity. Some examples of political activities not related to candidacy include becoming a member of a political party; contributing funds to a political party or candidate or attending political fundraising functions; attending political party events such as meetings, conventions, rallies, fundraising functions or other political gatherings; carrying out administrative activities for a political party or candidate, such as stuffing envelopes, answering or placing telephone calls or addressing correspondence on behalf of a political candidate or party; supporting a political party or candidate by displaying political material, such as a photo, sticker, badge, button or lawn sign; accompanying a candidate during a press conference; or organizing political events.

4.14 While public servants have the right to engage in political activities under the PSEA, the PSC may investigate allegations that federal public servants are engaged in political activities that impair, or that are perceived as impairing, their ability to perform their duties in a politically impartial manner. In cases where the allegations are founded, the PSC may order corrective action, which could include dismissal. If a person who is or was a candidate in an election makes an allegation that a deputy head was engaged in political activities other than voting, the PSC may conduct an investigation. If the allegation is substantiated, under section 119 of the Act, the PSC is required to report its conclusions to the Governor in Council, who can dismiss the deputy head.

Political candidacy

4.15 Under the previous PSEA, political activities included candidacy at the federal, provincial and territorial levels. Prior to the coming into force of the current PSEA, the PSC's role in federal, provincial and territorial elections was to grant leave if it was convinced that the "usefulness to the public service of the employee in the position the employee then occupies would not be impaired by reason of that employee having been a candidate" (subsection 33(3) of the former PSEA). With the current PSEA, the PSC's role in political activities was expanded to include municipal elections and the PSC was given more authority and flexibility to grant permission, with or without conditions, and leave of absence without pay (LWOP), if applicable.

4.16 Table 10 outlines the PSEA requirements and the PSC's role related to candidacy in elections. Public servants who want to seek nomination as, or be, candidates in a federal, provincial, territorial or municipal election must obtain permission, as well as a LWOP, if applicable, from the PSC prior to declaring their candidacy and undertaking candidacy-related activities. The PSC reviews each candidacy request on its own merits.

Table 10 - Public Service Employment Act requirements related to candidacy in elections

Federal, provincial or territorial elections

Municipal elections

Seeking nomination before or during election period

PSC permission required *

PSC permission required *

Being a candidate before election period

PSC permission required *

PSC permission required *

Being a candidate during election period

PSC permission and LWOP required

PSC permission required **

Effect of being elected

Requestor ceases to be an employee

PSC may make permission conditional on the following:

employee taking LWOP; or

requestor ceasing to be an employee.

The PSC may make permission conditional on the employee taking a LWOP:* for the period or any part of the period in which the employee seeks nomination as a candidate, or for the period or any part of the period in which the employee is a candidate before the election period, as the case may be; or** for the period in which the employee is a candidate during the election period.

Note: In cases where the PSC has concerns about the type of work performed or the specific files processed by the employee, operational work arrangements could be required by the department or agency.

4.17 Political candidacy requests — In 2008-2009, the PSC received 54 new requests for permission to seek nomination as, or to be, a candidate in an election. This represents a 20% increase from last year, when 45 new requests were received. The following table illustrates the disposition of requests submitted by public servants.

Table 11 - Status of requests (April 1, 2008 to March 31, 2009)

Level of election

Carried forward from 2007-2008 Permission granted in 2008-2009

NEW CANDIDACY REQUESTS RECEIVED IN 2008-2009

Permission granted

Permissions previously granted still applies

Permission not granted

Requests withdrawn prior to PSC review

Requests pending PSC review

TOTAL 2008-2009 new candidacy requests

Federal

0

9

0

2

1

0

12

Provincial

0

0

0

0

1

0

1

Territorial

0

0

0

0

0

0

0

Municipal

7
(2 LWOP)

29 *

3

0

5

4

41

TOTAL

7

38

3

2

7

4

54

Source: PSC Internal Tracking System* All requests were granted permission without the condition of taking a LWOP

4.18 Municipal election requests once again represented the majority (41 of 54, or 76%) of new candidacy requests received from employees during the fiscal year. Of the 36 employees who received permission to be candidates for municipal elections in 2008-2009, only 2 (6%) had the condition of a LWOP if elected.

4.19 In 2008-2009, as in the previous year, the PSC reviewed complex situations such as the following:

Working with organizations to identify the appropriate operational work arrangements, when there were concerns about the nature of work related to the specific functions of an employee; and

Reviewing the situation of employees who changed duties during the course of their elected municipal mandates. The PSC reserves the right to reconsider permission and/or conditions granted in light of any changes. In one situation, an employee changed both organization and functions. The PSC reviewed the employee's situation to ensure that continuing to be an elected municipal official did not impair or could not be perceived as impairing the employee's ability to perform his/her new duties in an impartial manner.

4.20 Under its legislative responsibilities, when reviewing candidacy requests, the PSC must balance the right of employees to engage in political activities with the principle of a politically impartial public service. To achieve this balance, factors such as the nature of the election, the nature of the employee's duties and the level and visibility of the employee's position are considered. To render a decision, the PSC requires both sufficient information and time to consider each candidacy request on its own merits. Sufficient time is required to properly deal with requests, to obtain clarification on necessary information or to explore operational work arrangements with the employee's organization. The Political Activities Regulations require that candidacy requests be submitted to the PSC for review no later than 30 days before the date by which the employee requires a decision from the PSC.

4.21 In 2008-2009, 28 of the 54 new candidacy requests (52%) were received by the PSC within less than the 30 days provided in the Regulations. For two federal candidacy cases, the PSC was not provided the full 30-day period required to obtain and consider the required candidacy documentation and information. Consequently, these federal candidacy requests for permission were not granted, as the PSC did not have sufficient time to assess the requests, consider alternate operational work arrangements and render a decision.

4.22 Federal election — A federal election was held on October 14, 2008. This was the first federal election period in which candidacy requests for permission and LWOP were reviewed and granted under the current political activities regime. For the previous federal election, in 2006, candidacy requests were received and assessed under the former PSEA.

4.23 Candidacy requirements for public servants existed under the former PSEA for federal, provincial and territorial elections. However, for elections under the previous Act, public servants had to obtain a LWOP from the PSC at the outset in order to seek nomination as, or to be, a candidate.

4.24 Under the current Act, the PSC has the discretion to decide, for federal, provincial and territorial elections, whether a public servant who has received permission to seek nomination as or be a candidate is required to take a LWOP, before the election period. During the election period, however, all public servants who have received permission to be candidates must be on LWOP. If the risk to the impartiality or perceived impartiality of the public service cannot be mitigated with the department or agency through an alternate operational work arrangement or a LWOP, the PSC may deny the request to seek nomination as, or to be, a candidate.

4.25 For the fall 2008 federal election, 23 employees requested permission from the PSC to seek nomination as, or to be, candidates and for a LWOP during the election period. However, only eight employees who had received PSC permission and LWOP registered as candidates with Elections Canada. Employees who were granted permission and LWOP but subsequently were not registered as candidates had various reasons, including withdrawing their request, declining the PSC's conditions, deciding not to seek nomination and/or be a candidate or being unsuccessful in winning their party's nomination.

4.26 Furthermore, there were some situations in which public servants did not request the PSC's permission prior to seeking nomination or becoming candidates, as well as situations in which public servants who were federal candidates remained at work during the election period. Such situations were referred for investigation. In all cases investigated, the allegations of improper political activity were determined to be founded. In two of these cases, the PSC ordered, as corrective action, that the public servants be suspended for the period in which they had worked during the election period without being on LWOP.

4.27 Municipal elections — The current PSEA extended the requirement that public servants obtain permission from the PSC for candidacy in municipal elections. Since its implementation, 147 of 202 candidacy requests received (73%) have been for permission to be candidates in municipal elections. For the majority of municipal candidacy requests, the PSC has granted permission.

4.28 The PSC has used its authority under the PSEA to make permission conditional on an employee taking a LWOP before the election period, during the election period or for the duration of the elected mandate. In addition, the PSC has also required that organizations implement alternate operational work arrangements if there were concerns about the nature of work or the specific functions of an employee. Of the 125 municipal candidacy requests that were granted permission, the PSC required such conditions in 54 instances.

4.29 By the end of fall 2009, all provinces and territories will have held municipal elections under the current political activities regime, including Newfoundland and Labrador (September 29, 2009) and Quebec (November 1, 2009).

4.30 In light of the experience gained in the last three years, the PSC has undertaken to streamline its approach to municipal candidacy requests. It is expected that this streamlining will facilitate the timely review of candidacy requests while ensuring that the PSC fulfills its mandate to safeguard a politically impartial public service.

Investigations into political activities

4.31 Under the PSEA, the PSC has the exclusive jurisdiction to investigate allegations of improper political activity. In 2008-2009, the PSC received 22 allegations of improper political activity. This figure is comparable to the 20 allegations received in 2007-2008.

4.32 In 2008-2009, 17 investigations were completed. In all cases except one, employees were found to have engaged in political activities contrary to the PSEA. Corrective actions were implemented on a case-by-case basis and included the following:

Subsequent assessment of permission requests;

Letters to employees and/or organizations to remind them of their obligations pursuant to Part 7 of the PSEA;

Development of plans to improve communication with employees, particularly those without access to computers, in a remote location and/or seasonal employees, about the political activities regime;

Suspension without pay for the period in which the employee worked during the electoral period without being on LWOP; and

Written reprimands to employees.

4.33 In most of these cases, the investigations concluded that individuals had run as candidates in municipal — and some federal or provincial — elections without seeking the necessary permission from the PSC. However, the PSC also discovered that communication from organizations to employees regarding their obligations to seek permission was inconsistent or, in some cases, non-existent. This issue was raised in outreach activities with organizations, and the PSC will continue to raise this issue with organizations should the trend continue. Summaries of PSC investigations may now be found on the PSC's Web site.

4.34 The PSC also receives allegations related to political activities of public servants that are not related to candidacy. These cases are particularly challenging in that activities not related to candidacy take many forms. While employees are free to engage in political activities, activities must still be examined on a case-by-case basis to assess whether or not they would impair, or be perceived by others as impairing, the employee's ability to perform their duties in a politically impartial manner. It is important to note that anyone may put forward an allegation of improper political activity against a federal public servant.

4.35 The PSC received two such allegations in 2008-2009. One investigation has been concluded with a finding that the allegation was unfounded. The second investigation has determined that the allegation was founded, and the PSC took corrective action. The two cases are described as follows:

Case 1:

The PSC conducted an investigation into allegations of improper political activities when a senior government official considered possible employment with the Office of the Leader of the Opposition. The issue was whether the activity was a permissible political activity and whether engaging in a political activity could impair, or be perceived as impairing, the employee's ability to perform their duties in a politically impartial manner.

The investigation concluded that no violations of the PSEA had occurred. The investigation also concluded that consideration of an offer of employment from a political party is not an improper political activity, as it is not considered an activity "in support of" a party, as defined under the PSEA. Despite the fact that the employee's acceptance of the employment offer was not contrary to the PSEA, the moment such information is publicly disclosed, it enters the political realm and, potentially, the realm of political controversy.

Case 2:

The PSC conducted an investigation to determine whether a junior-level employee at the Privy Council Office had engaged in an improper political activity by openly supporting a political party on a social networking Web site. The question examined was whether the support of a political party in such a manner could impair or be perceived as impairing the employee's ability to perform their duties in a politically impartial manner.

In order to answer this question, three factors were considered: the nature of the employee's duties; the nature of the political activities; and the level of visibility of the employee, including consideration of the mandate of the organization for which the employee works.

The investigation concluded that the employee had engaged in improper political activities contrary to subsection 113(1) of the PSEA. Although the evidence did not show that these political activities impaired the employee's ability to perform their duties in a politically impartial manner, the activities could be perceived as such. As the allegation of engaging in political activities was founded, further intervention on the part of the PSC was warranted.

The Commission ordered that:

A letter be sent to the employee to remind them of their obligations with regard to political activities, in particular that the employee may not engage in any political activities that impair or could be perceived as impairing their ability to perform their duties in a politically impartial manner;

The Privy Council Office review the orientation it provides to new employees and the information it provides to its current employees regarding political activities, to emphasize the Privy Council Office's particular mandate and organizational context;

The Privy Council Office review the manner in which it documents its files on political activities; and

The Privy Council Office report to the Commission on the results of these preceding corrective actions.

4.36 Movement of ministers' staff — Prior to December 2006, the PSEA provided select staff employed in the office of a minister, or in the office of the Leader of the Opposition in the Senate or the office of the Leader of the Opposition in the House of Commons, with a priority entitlement for appointment under certain circumstances. When the Federal Accountability Act (FedAA) received Royal Assent on December 12, 2006, it repealed the section of the PSEA related to this entitlement.

4.37 The FedAA amended the PSEA to allow ministers' staff, or the staff working in the office of the Leader of the Opposition in the Senate or Leader of the Opposition in the House of Commons, to participate in internal advertised appointment processes open only to employees of the federal public service, for a period of one year upon ceasing to be employed in these offices after having worked in one of them successively for at least three years (section 35.2 of the PSEA).

4.38 The PSC retained the authority to confirm whether former ministers' staff meet the criteria to participate in internal advertised appointment processes. The PSC has put in place mechanisms to ensure that the provision is managed appropriately and to allow those entitled to have access to internal advertised job processes. As of March 31, 2009, the PSC had not received any requests to confirm eligibility for this mobility provision for former ministers' staff.

4.39 In October 2007, the PSC's Audit of the Movement of Public Servants between the Federal Public Service and Ministers' Offices identified gaps in the policy framework governing such movement. The PSC committed to working with central agencies to determine the best approach to mitigate the real or perceived risks to non-partisanship as well as to clarify its guidance for the movement of public servants to and from ministers' offices.

4.40 In 2008-2009, the PSC provided input to the Treasury Board of Canada Secretariat on the draft "Directive on Leave and Special Working Arrangements." The PSC requested that there be more specific requirements related to monitoring such cases as part of its effort to protect the political impartiality of the public service, both real and perceived. The "Directive on Leave and Special Working Arrangements" that came into effect on
April 1, 2009 indicates that applications for leave without pay must clearly identify "the reason for the absence, such as to accept employment in the office of a minister, a minister of State, a secretary of State, or member of Parliament" and that "Heads of human resources must ensure that systems or procedures are in place to track the reason for leave without pay."

4.41 In addition, 24 files were referred to the PSC as a result of the audit. After assessing the criteria for investigations, no further action was taken in 18 of these cases. Of the six remaining files, one was investigated under section 66 of the PSEA and the remainder were investigated under section 7.1 of the former PSEA, as they related to appointments prior to December 31, 2005.

4.42 All investigations were completed by 2008-2009 and all were founded. Findings in the investigations included:

That a department had tailored a job description to fit an individual's qualifications;

That departments had improperly evaluated individuals' qualifications; and

That policy requirements of specific programs (e.g. the Special Assignment Pay Plan) were not respected.

4.43 Corrective action was taken in three cases but the PSC decided not to take corrective action in the remaining three cases as individuals had qualified in subsequent external processes, or they were no longer with the department. The corrective action taken included one revocation and two re-assessments of qualifications, training and letters from the PSC to the deputy heads to remind them of the distinction between the roles of minister's offices and the public service.

Increased communication needed

4.44 In order to ensure compliance with the Act, public servants need to have an understanding of their legal obligations regarding elections and the role of the PSC in granting permission. Communicating these obligations to employees is particularly challenging when they do not have access to electronic messages or when they are seasonal employees.

4.45 Both the PSC and organizations are making concerted efforts to inform employees of their rights and obligations. This includes using other venues to reach federal employees, such as through Web sites of provincial authorities responsible for municipal elections and through municipal associations. The PSC will continue to remind departments and agencies of their responsibility to effectively inform all employees of the need to seek PSC permission, particularly those in regional offices who may not have access to a computer as part of their job requirements.

4.46 Another challenge of communicating requirements to employees is that activities not defined in the PSEA are subject to the Values and Ethics Code for the Public Service or the respective values and ethics codes for organizations for which the Treasury Board of Canada is not the employer. While the Values and Ethics Code for the Public Service uses similar terms, such as political neutrality and objectivity, the definitions, scope and application are not clear. The Federal Public Servants Disclosure Protection Act requires that the Treasury Board establish a new Federal Public Sector Code of Conduct that will apply to the entire federal public sector, including to Crown corporations. This new code will replace the existing Values and Ethics Code for the Public Service and any applicable codes for organizations for which the Treasury Board of Canada is not the employer.

4.47 The PSC has provided input to the Chief Human Resources Officer, recommending a strengthening of non-partisanship and political impartiality in the Code. The PSC has recommended that the Code explicitly indicate that the PSC is responsible for overseeing the involvement of public servants in political activities, including taking corrective action, where appropriate, and providing guidance to public servants who are covered by Part 7 of the PSEA.

Non-partisanship in the 21st century

4.48 A permanent, professional and non-partisan public service is vital to Canada's system of democracy. It provides a measure of stability and ensures peaceful and orderly political succession, maintaining stable operations and uninterrupted services for Canadians. Canadians need to be confident that public servants administer, and are perceived as administering, programs and services in a professional and non-partisan manner.

4.49 Today, the challenge of ensuring a non-partisan public service is becoming more complex. The demographic changes brought about by the ongoing retirements of
"baby-boomers" and the large number of new recruits are creating a cultural change in the public service. Technological innovations, new ways of communicating through social networking Web sites and a greater use of telework blur the distinction between the professional and private lives of employees and provide new risks to the non-partisan character of the public service.

4.50 In addition, the PSEA does not cover all activities that could be perceived as inappropriate, as they do not fall within the definition of political activities in the Act. Involvement in outside causes or advocacy activities may pose real or perceived conflicts of interests with a public servant's professional role, even if those activities do not qualify as political activities as defined in the PSEA. On the other hand, past political experience may constitute a legitimate requirement for a position given the nature of the work to be performed, rather than a risk to non-partisanship. What is more, the many decisions that are made about what is appropriate behaviour and what is not have cumulative impacts on the political impartiality, real and perceived, of the public service as an institution, not simply of individual public servants.

4.51 These factors, combined with particular cases brought to the attention of the PSC over the past year, highlight the pressing need for a broad dialogue on the theme of
non-partisanship in the 21st century. The PSC intends to launch such an initiative in
2009-2010. The initiative will examine what a non-partisan public service should look like in the years ahead, what behaviours should be expected and what mechanisms and approaches can best ensure that Canadians continue to benefit from a public service that is based on the core values of both merit and non-partisanship. In so doing, the PSC will deepen its knowledge and play a leadership role regarding what is required to continue to safeguard the non-partisan character of the public service in the decades ahead.